Kirtland Products appeals planning commission decision

BOYNE CITY -- Kirtland Products filed an appeal last Friday opposing the revocation of its use permit by the Boyne City Planning Commission.

The appeal was filed in Charlevoix County's 33rd Circuit Court less than two weeks after planning commission members voted unanimously to permanently revoke the conditional use permit at their Jan. 21 meeting. The unanimous vote, with commissioner Lori Meeder abstaining due to a conflict of interest, came just days after reports were published showing air pollution coming from the plant exceeds limits set by the Department of Environmental Quality.

The planning commission decided in September 2012 that the company, located in the city's industrial park, was not in compliance with the permit originally issued.

The decision in January made that determination final, indicating the city was no longer interested in working to bring Kirtland back into compliance with that permit.

The September decision to deem the factory non-compliant was based on terms in the permit that required it to reduce noise and odor and implement landscaping at the site, which commissioners said were not satisfactorily completed.

"The city is planning to fully cooperate with the appeals process in a timely, cost-effective manner so that both parties can have their fair opportunity to be heard by the appeals court," said city attorney James Murray.

The city will file a response to the appeal within 21 days, he said, after which Kirtland will have a chance to file an appeal brief with more information on their case, and then the city will file its own appeal brief. Finally, there will be oral arguments and a decision will be made by the circuit court judge.

The appeal filed Friday by Kirtland cites several reasons the company and its attorneys believe the permit was wrongly revoked.

After a planning commission meeting in December, the company moved forward with plans to build sound-reducing enclosures, they say, and did not believe the permit would be revoked.

"Kirtland representatives appeared at the Jan. 21 meeting with the express understanding that there would be further discussion in a public forum relative to the steps previously taken and to be taken by Kirtland to address the noise complaints," states the court document.

The appeal goes on to claim that the planning commission did not impose conditions when it first authorized the permit.

"Because the planning commission failed to impose conditions when initially authorizing the conditional use approval, the referral by the planning/zoning administrator to the planning commission for 'violations of conditions'... were improper," it says.

Kirtland also claims that the imposition of decibel limits is "illegal" because "no decibel limits were imposed at the time the planning commission approved the conditional use permit."

The planning commission has no jurisdiction over Department of Environmental Quality regulations, it continues.

The company asserts that the planning commission's decision should be reversed because of a lack of evidence of violations.

"To the extent that the planning commission's decision is based upon a claim of excessive noise, the decision is erroneous because the planning commission failed to include any noise level conditions when approving the conditional land use," states the appeal.

Kirtland is asking that the circuit court reverse the September decision by the planning commission and enter a permanent injunction which would not allow the city to take any further action to shut down the factory, based on current claims against it.